B-205428 L/M, DEC 31, 1981, OFFICE OF GENERAL COUNSEL

B-205428 L/M: Dec 31, 1981

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IMPREST FUNDS WERE STOLEN FROM SAFE AT NIGHT. SINCE EVIDENCE WAS CLEAR THAT BURGLARY HAD OCCURRED. THE SECRETARY OF AGRICULTURE: THIS IS IN RESPONSE TO A LETTER FROM MR. RELIEF IS GRANTED. 997.52 WAS TAKEN FROM THE CONTRACTING AND PURCHASING OFFICE SAFE. ALTHOUGH PRY MARKS WERE FOUND ON THE OPEN SAFE. IT APPEARS THAT THE SAFE WAS OPENED BY USE OF THE COMBINATION. IN WHICH SAFE COMBINATIONS WERE KEPT. THE WRITTEN COMBINATION WAS FOUND LYING NEAR THE OPEN SAFE. WHO AT THE TIME WAS THE ADMINISTRATIVE OFFICER AT FREMONT. NOR HIS SUCCESSOR CAN STATE WITH CERTAINTY WHETHER OR NOT THIS PARTICULAR COMBINATION WAS AMONG THOSE KEPT IN THE FILE CABINET. THE INVESTIGATION INDICATED THAT THIS WAS ONE OF SEVERAL BURGLARIES THAT HAD OCCURRED IN THE GENERAL VICINITY.

B-205428 L/M, DEC 31, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: DEPARTMENT OF AGRICULTURE REQUESTED RELIEF FROM LIABILITY FOR IMPREST FUND CASHIER. IMPREST FUNDS WERE STOLEN FROM SAFE AT NIGHT. THIEF OBTAINED COMBINATION FROM ADMINISTRATIVE OFFICER'S LOCKED FILE CABINET. SINCE EVIDENCE WAS CLEAR THAT BURGLARY HAD OCCURRED, AND NEGLIGENCE COULD NOT BE ATTRIBUTED TO ACCOUNTABLE OFFICER, GAO CONCURS WITH AGENCY'S DETERMINATION THAT RELIEF BE GRANTED UNDER 31 U.S.C. SEC. 82A-1.

JOHN R. BLOCK, THE SECRETARY OF AGRICULTURE:

THIS IS IN RESPONSE TO A LETTER FROM MR. DEAN K. CROWTHER, DIRECTOR OF OPERATIONS AND FINANCE, DEPARTMENT OF AGRICULTURE, REQUESTING THAT FORMER IMPREST FUND CASHIER RANDY L. AVART, FORMERLY EMPLOYED AT THE FREMONT NATIONAL FOREST SUPERVISOR'S OFFICE IN LAKEVIEW, OREGON, BE RELIEVED OF LIABILITY FOR A LOSS OF $1,997.52 FROM HIS ACCOUNT. FOR THE REASONS THAT FOLLOW, RELIEF IS GRANTED.

ACCORDING TO THE RECORD, THE LOSS APPARENTLY RESULTED FROM BURGLARY AT THE FOREST SUPERVISOR'S OFFICE, AT SOME TIME BETWEEN THE LATE EVENING OF SEPTEMBER 2 AND THE EARLY MORNING OF SEPTEMBER 3, 1980. A TOTAL OF $1,997.52 WAS TAKEN FROM THE CONTRACTING AND PURCHASING OFFICE SAFE. ALTHOUGH PRY MARKS WERE FOUND ON THE OPEN SAFE, IT APPEARS THAT THE SAFE WAS OPENED BY USE OF THE COMBINATION, BECAUSE THE ADMINISTRATIVE OFFICER'S LOCKED FILE CABINET, IN WHICH SAFE COMBINATIONS WERE KEPT, HAD BEEN PRIED OPEN, AND THE WRITTEN COMBINATION WAS FOUND LYING NEAR THE OPEN SAFE.

MR. AVART CLAIMS THAT HE GAVE A COPY OF THE SAFE COMBINATION TO GARY BARROWCLIFF, WHO AT THE TIME WAS THE ADMINISTRATIVE OFFICER AT FREMONT. NEITHER MR. BARROWCLIFF, NOR HIS SUCCESSOR CAN STATE WITH CERTAINTY WHETHER OR NOT THIS PARTICULAR COMBINATION WAS AMONG THOSE KEPT IN THE FILE CABINET.

THE LAKESIDE POLICE DEPARTMENT WORKED IN CONJUNCTION WITH THE FEDERAL BUREAU OF INVESTIGATION IN INVESTIGATING THE LOSS. THE INVESTIGATION INDICATED THAT THIS WAS ONE OF SEVERAL BURGLARIES THAT HAD OCCURRED IN THE GENERAL VICINITY. NO ARRESTS HAVE BEEN MADE.

WE HAVE AUTHORITY UNDER 31 U.S.C. SEC. 82A-1 (1976) TO GRANT RELIEF TO ACCOUNTABLE OFFICERS FROM LIABILITY FOR THE PHYSICAL LOSS OF FUNDS UPON OUR CONCURRENCE WITH THE AGENCY HEAD OR HIS DELEGATE:

"*** (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. ***"

MR. CROWTHER HAS DETERMINED UNDER 31 U.S.C. SEC. 82A-1, THAT THE LOSS OCCURRED WHILE MR. AVART WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES AND WITHOUT FAULT OR NEGLIGENCE ON HIS PART. WE CONCUR.

WHILE THERE IS A PRESUMPTION THAT AN ACCOUNTABLE OFFICER HAS BEEN NEGLIGENT IN THE LOSS OF ANY FUNDS FOR WHICH HE OR SHE IS RESPONSIBLE, THIS PRESUMPTION IS REBUTTABLE BY EVIDENCE TO THE CONTRARY. SEE 54 COMP.GEN. 112, 115 (1974). WE HAVE PREVIOUSLY GRANTED RELIEF TO ACCOUNTABLE OFFICERS WHERE THE EVIDENCE IS CLEAR THAT A THEFT TOOK PLACE AND AN INVESTIGATION HAS REVEALED NO CONNECTION BETWEEN THE ACCOUNTABLE OFFICERS AND THE THEFT. B-198836, JUNE 26, 1980; B-198881, JUNE 18, 1980.

IN THE PRESENT CASE THERE IS CLEAR EVIDENCE OF BURGLARY. THE WINDOW IN THE JANITOR'S ROOM WAS PRIED OPEN AND THE OFFICES WERE RANSACKED. ITEMS OTHER THAN THE $1,997.52 WERE STOLEN.

THE RECORD ALSO SUPPORTS THE ADMINISTRATIVE DETERMINATION THAT MR. AVART WAS NOT NEGLIGENT IN ANY WAY IN THE PERFORMANCE OF HIS CUSTODIAL DUTY REGARDING THE STOLEN FUNDS. MR. AVART CHECKED THE SAFE'S LOCK BEFORE LEAVING THE OFFICE THE PRECEDING DAY. THIS IS NOT ONLY SUPPORTED BY MR. AVART'S STATEMENT THAT HE SYSTEMATICALLY DID SO, BUT BY THE EVIDENCE OF THE PRY MARKS ON THE SAFE. IF THE SAFE HAD BEEN LEFT OPEN THERE WOULD BE NO NEED FOR THE THIEF TO ATTEMPT TO PRY IT OPEN.

IT APPEARS THAT AFTER THE UNSUCCESSFUL ATTEMPT TO PRY OPEN THE SAFE, THE THIEF OBTAINED THE COMBINATION FROM THE ADMINISTRATIVE OFFICER'S LOCKED FILE CABINET. THE COMBINATION USED TO OPEN THE SAFE WAS WRITTEN ON THE BACK OF THE LOCKSMITH'S BUSINESS CARD IN THE LOCKSMITH'S HANDWRITING. EVIDENCE CONTROVERTS MR. AVART'S STATEMENT THAT A COPY OF THE COMBINATION WAS GIVEN TO THE ADMINISTRATIVE OFFICER. MR. AVART'S OWN COPY WAS IN HIS POSSESSION. ACCORDING TO MR. BARROWCLIFF, THE COMBINATIONS WERE KEPT IN A FILE FOLDER MARKED "SAFE COMBINATIONS." THE FACT THAT ENVELOPES CONTAINING OTHER COMBINATIONS WERE LYING AROUND THE FILE CABINET INDICATES THAT THE FILE FOLDER HAD BEEN TAMPERED WITH.

MR. AVART WAS NOT NEGLIGENT IN PROVIDING A COPY OF THE SAFE'S COMBINATION TO THE ADMINISTRATIVE OFFICER. TREASURY DEPARTMENT PROCEDURES SPECIFICALLY REQUIRED HIM TO DO SO. SEE B-193416, OCTOBER 25, 1979.

THEREFORE, WE CONCUR WITH THE ADMINISTRATIVE DETERMINATION THAT MR. AVART SHOULD BE RELIEVED OF LIABILITY IN THIS CASE. THE LOSS SHOULD BE CHARGED TO CURRENTLY AVAILABLE APPROPRIATIONS IN ACCORDANCE WITH THE LAST SENTENCE OF 31 U.S.C. SEC. 82-1.

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